Contentious probate practitioners know all too well the entrenched positions, high emotion, and family complexities that can make will disputes some of the most challenging cases to resolve. Mediation offers a constructive, client-aligned alternative, but persistent misconceptions can prevent parties and even advisors from using it to its fullest advantage.
Below, we examine five common misconceptions about mediation in will disputes and reflect on how addressing these can support your clients, preserve family wealth, and safeguard professional relationships.
A common perception is that mediation is suitable only where parties are already close to agreement. In reality, some of the most entrenched disputes find resolution through mediation precisely because it provides a structured, confidential forum where difficult conversations can happen safely.
In will disputes, parties may be motivated by grief, hurt, and perceived injustice as much as legal positions. Mediation allows these drivers to be acknowledged while focusing on practical outcomes. It can transform a dispute that feels intractable into a negotiated resolution that preserves family resources (and sometimes relationships).
Some clients fear that entering mediation signals a willingness to give up on their case. As practitioners know, mediation is not about capitulation but about control. It enables parties to shape outcomes that work for them rather than having a solution imposed by the court.
Mediation can preserve a client's interests while avoiding the unpredictability, cost, and emotional drain of a trial. It can also achieve outcomes a court cannot order, such as tailored arrangements for property use or structured payments between siblings.
Some solicitors and counsel worry that mediation may reveal their hand or weaken their litigation position. In practice, mediation can be used strategically as part of the litigation process.
It can clarify what is genuinely in dispute, narrow the issues, and test the other side’s willingness to engage constructively. Even if settlement is not reached on the day, mediation often lays the groundwork for later agreement, reducing the risk and cost of full litigation.
Timing concerns often prevent referral to mediation. Some believe it is too early, with disclosure incomplete; others fear it is too late once positions are entrenched. In will disputes, there is often no perfect moment. However, mediation can be effective at various stages:
- Early mediation can prevent litigation costs from escalating unnecessarily.
- Mid-litigation mediation can take place once disclosure clarifies the evidence.
- Even close to trial, mediation can avoid the all-or-nothing risk of judgment.
Finally, the idea that proposing mediation signals weakness can be a barrier. In reality, it often demonstrates foresight and a commitment to client interests. Courts increasingly expect parties to explore alternative dispute resolution and are now more likely to order it, and a willingness to mediate can align with the court’s expectations and the client’s best interests.
Far from weakening a party’s position, mediation can empower them, allowing them to voice their concerns directly and engage in practical problem-solving.
A Strategic Tool for Contentious Probate Practitioners
As professionals, we share a responsibility to pursue outcomes that protect clients’ interests while preserving family wealth and dignity. Mediation in will disputes is not a soft option; it is a sophisticated tool that can complement your litigation strategy while demonstrating to your clients your commitment to practical, client-focused resolution.
If you have a will or inheritance dispute you would like to discuss for possible mediation, I am always happy to talk, contact me at phil@heskethmediation.com.